92 Decision Citation: BVA 92-15007
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-55 781 ) DATE
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THE ISSUE
Entitlement to an increased (compensable) evaluation for low
back pain.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
K. Hudson, Associate Counsel
INTRODUCTION
The veteran had active service from June 1971 to June 1974.
This matter came before the Board on appeal from a rating
decision of August 1991 from the Cleveland, Ohio, Regional
Office (RO). The veteran's notice of disagreement was
received on October 4, 1991, the statement of the case was
issued October 23, 1991, and a supplemental statement of the
case was issued December 13, 1991. The substantive appeal
was received January 15, 1992. The case was received at the
Board of Veterans' Appeals on February 6, 1992, and docketed
February 13, 1992. It was referred to the veteran's
representative throughout this appeal, AMVETS, on February
21, 1992, and that organization submitted additional written
arguments to the Board on March 25, 1992. Thereafter, the
case was referred to a section of the Board for appellate
consideration.
REMAND
Initially, we note that the veteran has presented a
well-grounded claim, and, therefore, the Department of
Veterans Affairs (VA) has a statutory obligation to assist
him in the development of his claim. 38 U.S.C. § 5107(a)
(1992).
The veteran claims that his low back disability is more
disabling than currently evaluated. However, the essential
disagreement appears to be with the scope of the
service-connected disability; he claims that arthritis,
which the RO has determined is not part of the
service-connected disability picture, should be
service-connected. We note that service connection for
arthritis was previously denied by rating action of April
1988. The veteran did not appeal this action. However, in
his claim filed in September 1987, he claimed service
connection for generalized arthritis, and although the
rating action itself referred to arthritis of the back, the
notification to the veteran only informed him that service
connection for arthritis had been denied. Since his current
claim refers specifically to arthritis of the back,
resulting from low back pain in service, and thus not of a
generalized nature, we are of the opinion that this presents
a new issue. Moreover, the rating action on appeal also
also distinguished disc disease of the lumbosacral spine
from the service-connected disability picture, which has not
been previously considered. We also note that, although the
RO has emphasized that at the time of the initial grant of
service connection the examination findings referred to the
T12 level of the back, the VA examination of June 1991 did
not refer to any findings involving that level of the spine;
specifically, no X-rays of T12 were obtained.
The United States Court of Veterans Appeals has held that
the duty to assist includes the development of secondary
service connection issues which are inextricably intertwined
with the certified issue. Payne v. Derwinski, 1 Vet. App.
85 (1990); Harris v. Derwinski, 1 Vet. App. 180 (1991). The
Court has also held that this duty to assist extends to
obtaining adequate VA examinations, including opinions from
the examining physician as to a possible relationship
between a service-connected disability and a disability
claimed as secondary thereto. Moore v. Derwinski, 1 Vet.
App. 401 (1991). In view of the Board's statutory duty to
assist the veteran in the development of evidence pertinent
to his claim, this case is REMANDED for the following:
1. The veteran should be afforded a VA
orthopedic examination for the purpose of
(1) determining whether the veteran's
current arthritis and disc disease of the
low back are etiologically related to the
service-connected low back pain, and (2)
if not, to distinguish symptomatology
resulting specifically from the
service-connected back disability from
the additional disabilities. The claims
folder should be made available to the
examiner for review prior to the
examination; a detailed history of
symptoms should be obtained from the
veteran; and the examiner should express
an opinion as to the scope of the
disability resulting from the
service-connected low back pain, and
state the reasons for the conclusions
reached. Specific findings regarding the
veteran's current back disability,
including an X-ray report of the T12
level of the spine, should also be set
forth.
2. Thereafter, all action necessary to
develop the issues of entitlement to
service connection for arthritis of the
low back and disc disease of the low
back, secondary to or part and parcel of
service-connected low back pain, should
be completed by the originating agency.
If action taken is adverse to the
veteran, he should be notified of his
appellate rights, and provided an
opportunity to appeal.
Thereafter, the case should be reviewed by the originating
agency. If the decision remains adverse to the veteran, he
and his representative should be furnished a supplemental
statement of the case which refers to all appealed issues.
If indicated, he should be notified of the requirement that
a substantive appeal be submitted in order to perfect an
appeal relative to the new issues. After affording the
veteran and his representative an opportunity to respond,
the case should be returned to the Board for appellate
consideration, if otherwise in order.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
URSULA R. POWELL PAUL M. SELFON, M.D.
*
(MEMBER TEMPORARILY ABSENT)
(CONTINUED ON NEXT PAGE)
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C. § 7252 (1991), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.